Why Punish Attempts at All? Yaffe on 'The Transfer Principle'

Criminal Law and Philosophy 6 (3):399-410 (2012)
Gideon Yaffe is to be commended for beginning his exhaustive treatment by asking a surprisingly difficult question: Why punish attempts at all? He addresses this inquiry in the context of defending (what he calls) the transfer principle: “If a particular form of conduct is legitimately criminalized, then the attempt to engage in that form of conduct is also legitimately criminalized.” I begin by expressing a few reservations about the transfer principle itself. But my main point is that we are justified in punishing attempts only when and for a different reason than Yaffe provides. I argue that attempts are legitimately punished only when they raise the risk that a harm will actually occur. To overcome the problems my explanation encounters with factually impossible attempts, I suggest an account of risk that relies on ordinary language and possible worlds
Keywords Attempts  Risk  Possible worlds  Factual impossibility  Legal impossibility  Inherent impossibility  Yaffe  Double inchoate crimes
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DOI 10.1007/s11572-012-9147-z
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Joel Feinberg (1987). Harm to Others. Philosophical Review 96 (2):295-298.

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